785 F. Supp. 2d 1188
D.N.M.2011Background
- Plaintiff Obenauf sued Frontier Financial Group, Inc. (FFG) for FDCPA, NMUPA, and common-law tort claims after FFG called the wrong number seeking a different debtor.
- Default judgment on liability was entered against FFG; the court must determine damages.
- Obenauf sought substantial damages including emotional distress, statutory damages, and attorney’s fees.
- FFG’s licensing status in NM (CARA) and NMUPA violations were contested; NMUPA damages cap and remedies at issue.
- An evidentiary hearing was held; partial relief granted, including modest damages and a fee award.
- The court concluded that liability rests on the default judgment and awarded specific damages and injunctive relief limited to stopping calls to the plaintiff.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages under FDCPA non-monetary relief | Obenauf seeks substantial damages for distress | FFG contests high damages given limited distress | Nominal to modest damages awarded; emotional distress $150, statutory $300, fees $2,500 |
| License-based NMUPA damages and injunctive relief | Unlicensed collection violates NMUPA justifying treble damages | CARA exemption may apply; no NMUPA-based injunction warranted | No NMUPA trebling; a broad injunction denied; limited injunctive relief on ringing stopped |
| Whether FDCPA §1692d violation supports damages | Calls after stop request violated §1692d(5) | Pattern insufficient to show harassment | No substantial §1692d damages; only nominal damages awarded on this basis |
| Attorney’s fees under FDCPA | Fees should reflect modest success | Fees should be limited given partial success | Award of $2,500 in attorney’s fees; lodestar $4,883.25 reduced for limited success |
| Whether unlicensed status alone supports damages | Unlicensed collection is FDCPA violation | Lack of NM licensing may be exempt under CARA in NM | Damages not awarded on CARA licensing ground; no additional relief for unlicensed status |
Key Cases Cited
- Flaks v. Koegel, 504 F.2d 707 (2d Cir. 1974) (default admits liability but damages require proof; punitive damages need evidence)
- Rainey v. Diamond State Port Corp., 354 F.Appx. 722 (3d Cir. 2009) (nominal damages may be appropriate without full damages show)
- Farrar v. Hobby, 506 U.S. 103 (9th Cir. 1992) (degree of success governs attorney’s fee in civil rights claims; nominal damages may affect fee awards)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (lodestar reasonable unless adjustments warranted by success level)
- Koopman v. Water Dist. No. 1, 41 F.3d 1417 (10th Cir. 1994) (nominal damages can still support an award of attorney’s fees under Farrar framework)
- Graziano v. Harrison, 950 F.2d 107 (3d Cir. 1991) (fee awards under FDCPA depend on degree of success and related factors)
- Pipiles v. Credit Bureau of Lockport, 886 F.2d 22 (2d Cir. 1989) (attorney’s fees available under FDCPA even for minimal violations; discretionary)
- de Jesus v. Banco Popular de Puerto Rico, 918 F.2d 232 (1st Cir. 1990) (fee awards under FDCPA informed by general fee-shifting principles)
- Zagorski v. Midwest Billing Servs., Inc., 128 F.3d 1166 (7th Cir. 1997) ( FDCPA fees are generally mandatory but adjustable under Farrar; avoid windfalls)